State police confident Frein statements won't be suppressed

Lt. Col. George Bivens says the Pennsylvania State Police would have targeted any fugitive assassin who poses a threat to society.

An attorney who was denied access to ambush suspect Eric Frein immediately following his arrest thinks Frein has a viable argument to challenge the admission of statements made to police without counsel present.

The U.S. Supreme Court and state appellate courts have previously ruled the failure of police to advise a defendant an attorney was present to represent them does not violate the person's due process rights or their right against self incrimination.

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But attorney James Swetz of Stroudsburg said a 2013 state Superior Court opinion in the Lackawanna County case of Randal Rushing "left open" the issue, providing the Pike County public defenders now representing Frein an avenue to seek to suppress his statements, should they opt to do so.

Frein, 31, of Canadensis, is charged with fatally shooting Cpl. Bryon K. Dickson II of Dunmore and wounding Trooper Alex T. Douglass of Olyphant outside the state police barracks in Blooming Grove on Sept. 12. Police previously confirmed he gave a statement to authorities after he was taken into custody on Oct. 30 following a 48-day manhunt.

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It's not known yet if Frein's current attorneys, Michael Weinstein and Robert Bernathy, will file such a challenge. Weinstein said he is still reviewing the case and has not yet decided the matter.

Swetz said he was hired by Frein's parents to represent him, prior to the public defenders being appointed to the case. He said he advised authorities he was retained to represent Frein, but police would not allow Swetz to see him and also refused to advise him Swetz was present, he said.

Responding to a question at a press conference Wednesday, state police Lt. Col. George Bivens said he had no concerns that decision could lead to statements Frein made being thrown out.

Swetz said he believes police erred in denying him access.

"Mr. Frein had a fifth amendment right and a sixth amendment right to have a message delivered to him that counsel had been retained by his family," Swetz said. "Moreover, there is a due process right concerning fundamental fairness."

Swetz cited the Superior Court case of Mr. Rushing, who was convicted in 2010 of killing three people in South Scranton. Rushing sought to overturn his conviction, arguing incriminating statements he made should have been suppressed because police did not advise him a public defender, Paul Walker, had come to the prison to represent him prior to him being interviewed.

The Superior Court denied the claim, citing prior appellate court rulings that said a defendant must specifically request an attorney. Police are not obligated to advise a defendant an attorney wishes to speak with them.

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Swetz said the court ruling did not entirely resolve the issue. The court noted numerous other states have found such situations to violate a person's Miranda rights, which guarantee a defendant access to an attorney.

The court said those cases did not apply to Rushing because they involved cases where an attorney was retained for the defendant by someone acting on his behalf. Walker had not been retained to represent Rushing.

That's a different scenario than Frein's case since Swetz was hired to represent him.

The Superior court ruling in Rushing's case also noted the Pennsylvania Supreme Court "has not eliminated the possibility" that failure to advise a defendant of an attorney's presence could equate to a violation of their due process rights, even if it is not a violation of the Miranda rights.

Pike County District Attorney Ray Tonkin on Wednesday declined to address the issue, saying the matter will be decided in court should Frein's attorneys opt to challenge his statements.